Exhibit 10.28
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT is entered into as of April 9, 2001, by and
between TSET, Inc., a Nevada corporation ("TSET"), and Xxxxxxx X. Xxxxxxxx
("Xxxxxxxx").
WITNESSETH:
WHEREAS, TSET desires to grant to Papworth an option to acquire up to
398,475 restricted shares of TSET's common stock, par value $0.001 per share
(the "Option Shares"), in consideration of valuable contributions made by
Papworth to TSET and its wholly-owned subsidiaries; and
WHEREAS, Papworth desires to accept such option.
NOW, THEREFORE, for and in consideration of the premises and mutual
promises, covenants, and agreements set forth herein and for other good and
valuable consideration, the delivery, receipt, and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. GRANT OF OPTION. TSET grants to Papworth an option (the "Option") to
acquire the Option Shares at an exercise price of $0.885 per share
(the "Exercise Price"). The Option shall immediately and fully vest
in Papworth's favor for all purposes upon execution and delivery of
this Agreement by the parties. The Option is personal to Papworth and
may be exercised only by Papworth during his lifetime. The Option
shall continue in full force and effect for a period of 10 years from
the date hereof (the "Term"), at which time the Option shall expire
and terminate unless previously exercised by Papworth. The Option
shall not be subject to forfeiture or termination, except for
Papworth's failure to exercise the Option during the Term.
2. EXERCISE OF OPTION. The Option may be exercised by Papworth, in whole
or in part, at any time during the Term upon receipt by TSET of
written notice from Papworth (the "Exercise Notice"). The Exercise
Notice shall specify the number of Option Shares Papworth desires to
acquire pursuant thereto and provide any necessary or appropriate
instructions to TSET and its transfer agent regarding the
denomination of certificates representing the Option Shares and the
name in which the Option Shares should be registered. The exercise of
the Option shall be on a "cashless" basis and Papworth shall not be
required to remit to TSET any payment therefor.
3. RESERVATION OF THE OPTION SHARES. To ensure fulfillment of its
obligations hereunder should Papworth elect to exercise the Option,
TSET shall reserve from its authorized but unissued capital that
number of shares of its common stock equal to the Option Shares.
4. RESTRICTIONS ON TRANSFER. Papworth acknowledges that the Option
Shares are subject to certain restrictions upon transfer, and cannot
be sold, assigned, transferred, or conveyed (in any case, a
"transfer") except in compliance with such restrictions and
applicable provisions of federal and state securities laws.
Certificates representing the Option Shares shall bear appropriate
restrictive legends and notices. In the event Papworth desires to
transfer any Option Shares prior to the expiration of such
restrictions, TSET shall be entitled to receive from Papworth written
undertakings, certifications, or opinions of legal counsel evidencing
compliance with such restrictions.
5. TAX MATTERS. Papworth acknowledges that treatment of the Option, the
Option Shares, and events or transactions with respect thereto, for
federal and state income and other tax purposes, is dependent upon
various factors and events which are not determined by this
Agreement. TSET makes no representations to Papworth with respect to,
and hereby disclaims any and all responsibility as to such tax
treatment. Papworth shall be solely and fully responsible for the
payment of, and shall pay, any and all federal, state, and other
taxes (including any and all withholding taxes) levied with respect
to the grant of the Option, the purchase of the Option Shares, and
any subsequent transfer thereof. In the event the exercise of the
Option or the disposition of the Option Shares following exercise of
the Option results in Papworth's realization of income which for
federal, state, local, or other income tax purposes is, in TSET's
opinion, subject to withholding of tax, then at the election of TSET
and prior to the delivery to Papworth of certificates representing
the Option Shares acquired by him pursuant to an Exercise Notice, (a)
Papworth shall pay to TSET an amount equal to such withholding tax or
(b) TSET may withhold such amount from any compensation or other
payments owed by TSET to Papworth.
6. NONQUALIFIED STATUS. The Option is not intended to be an "incentive
stock option" as defined in the Internal Revenue Code of 1986, as
amended, and shall not be treated as such whether or not, by the
terms hereof, it meets the requirements of any applicable provisions
thereof.
7. NOTICES. All notices or other communications given or made hereunder
shall be in writing and may be delivered personally, by express,
registered, or certified mail (return receipt requested), by special
courier, or by facsimile transmission (to be followed by delivery of
a written original notice in the most expeditious manner possible, as
aforesaid), all postage, fees, and charges prepaid, to TSET and
Papworth, as the case may be, to the following addresses (which may
be changed by the parties from time to time upon written notice given
as aforesaid):
000 Xxxxx Xxxxx Xxxxxx, XXX 111
To TSET: Xxxx Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Chief Executive Officer
Tel: 000.000.0000
Fax: 000.000.0000
To Papworth: 000 Xxxxx Xxxxx Xxxxxx, XXX 000
Xxxx Xxxxxx, XX 00000
Tel: 000.000.0000
Fax: 000.000.0000
Notices hereunder shall be deemed given when delivered in person,
upon confirmation of successful transmission when sent by
facsimile, or 5 days after being mailed by express, registered,
or certified mail (return receipt requested), postage and fees
prepaid.
8. INTEGRATION, AMENDMENT, AND WAIVER. When executed and delivered,
this Agreement shall constitute the entire agreement between the
parties with respect to the subject matter hereof and shall
supersede any and all prior agreements and understandings with
respect thereto. No other agreement, whether oral or written, shall
be used to modify or contradict the provisions hereof unless the
same is in writing, signed by the parties, and states that it is
intended to amend the provisions of this Agreement. No waiver by
either party of any breach of this Agreement in any particular
instance shall constitute a waiver of any other breach hereof in any
other circumstance or any relinquishment for the future of their
respective rights to strictly enforce all of the other provisions
hereof or seek all remedies which may be available at law or in
equity.
9. COUNTERPARTS; BINDING EFFECT. This Agreement may be executed in
multiple counterparts (and by facsimile signature, to be followed by
manual signature), each of which shall be deemed an original, and
all of which shall be deemed to constitute a single agreement. This
Agreement shall be binding upon and inure to the benefit of the
parties' respective permitted heirs, successors, and assigns.
10. ASSIGNMENT. This Agreement is personal to the parties hereto.
Accordingly, Papworth shall not assign or transfer this Agreement
without the prior written consent of TSET, which consent shall not
be unreasonably withheld, conditioned, or delayed; provided,
however, that Papworth shall be permitted to assign or transfer this
Agreement to a legal entity owned by Papworth without such consent.
Any attempted assignment of this Agreement by Papworth without
receipt of such consent from TSET shall be null and void.
11. SEVERABILITY. If any provision (or portion thereof) of this
Agreement is adjudged unenforceable by a court of competent
jurisdiction, the remaining provisions shall nevertheless continue
in full force and effect and the provision deemed unenforceable
shall be remade or interpreted by the parties in a manner that such
provisions shall be enforceable to preserve, to the maximum extent
possible, the original intention and meaning thereof. If necessary
to effect such intent, TSET and Papworth shall negotiate in good
faith to amend this Agreement to replace such provision with
language believed in good faith by the parties to be enforceable,
which as closely as possible reflects such intent.
12. NO THIRD PARTY BENEFICIARIES. This Agreement is for the sole benefit
of the parties and their permitted successors, heirs, and assigns.
Nothing herein, expressed or implied, shall give or be construed to
give any other person, other than the parties and their permitted
assigns, any legal or equitable rights hereunder. No finder's or
other fees shall be payable by either party with respect to the
exercise of the Option or the issuance of the Option Shares pursuant
to this Agreement.
13. STATE SECURITIES QUALIFICATIONS. The sale of the Option Shares
pursuant to any exercise of the Option has not been qualified with
the securities regulatory authorities in any state or other
jurisdiction and the issuance of the Option Shares prior to such
qualification may be unlawful unless such transactions are exempt
from such qualification requirements. The rights of the parties
hereto are expressly conditioned upon such qualification being
obtained, unless any such transaction is so exempt.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Oregon, exclusive of its
conflicts of laws principles.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement effective as of the date first written above.
TSET, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
